What you're not recognizing is that option 3 refers to the libraries taken from KHTML.
KHTML is a product containing a number of libraries, many of which Apple used in their product. Some of those libraries were modified, in particular as you point out to remove the reliance on Qt. Those modified libraries had to be shared.
Those modified libraries, plus some unmodified libraries, plus some wholly independent libraries, combine together to form a product called WebCore. WebCore's KHTML-based, modified libraries must be shared back per the terms of the LGPL. WebCore's independent libraries need not be, thus, WebCore as a whole need not be open source (but practically speaking, separating it would be more work than it would be worth).
WebCore, in turn, is a set of libraries in a product called WebKit. WebKit is a set of libraries in a product called Safari.
The LGPL does not reach beyond the LGPL'd libraries--i.e., the portion of WebCore that is KHTML-derived. This is the only code Apple is obligated to release under the LGPL (plus their likewise KJS-derived libraries).
LGPL isn't the same as a BSD permissive-style license,
No. But neither is it the same as the GPL generally.
The reason it was known as the Library GPL is that it allowed the non-contributory use of GPL'd libraries by other types of software licensed under terms incompatible with the GPL.
The KHTML library changes would have had to be shared per the terms of the licenses. This requirement, however, does not even encompass all of WebCore, let alone WebKit.
As far as I know, however, any changes or improvements made to the LGPL'ed programme itself must be distributed Freely, with source, if it is to be distributed at all.
Any changed or improvements to the LGPL'd software, which it is a complete program or a library. In the case of KHTML, it is a set of libraries. Those libraries were adopted into the codebase for WebCore--and only those libraries derived from the KHTML libraries would need to be shared.
It does not extend to other libraries written by Apple or any other developer, and it does not extend to products merely containing those libraries. Limiting that "wagon-hitching" (widely, and in some ways regrettably, known as "parasitic") effect of the GPL is the reason the LGPL exists in the first place.
Well, I can't claim to be an expert on the LGPL, but Wikipedia would seem to be in contradiction with you, and while I don't trust Wikipedia implicitly, I trust it more than random internet guy.
In this case, there is no need to make a distinction, because Wikipedia does not disagree with me. Please point out where you feel there is inconsistency.
the LGPL does not allow them to make changes to it and distribute them without giving the source back. Since Apple had to make significant changes to make it work modularly and the way they wanted, they had to give all those changes back.
You are still being imprecise. The LGPL does allow them to make whatever changes they like, so long as the KHTML libraries they are using are used intact. I do not disagree that any modified libraries had to be shared back upstream, but those changes are portions of WebCore, itself a portion of WebKit. There was no requirement that compartmentalized changes, improvements, and additions be shared if they extended beyond the four corners of the KHTML libraries.
WebCore is much more than rewritten KHTML libraries. WebKit is much more than WebCore.
That said, to claim Apple had a choice about how Webkit would be licensed or if their changes to it would be open source is simply not true.
It absolutely is true. There was no obligation to open-source WebKit. There wasn't even an obligation to open-source the entirety of WebCore and JSCore. There was an obligation to share changes to modified libraries.
What's simply not true is that Apple had no alternative. Apple provided WebKit tactically, not out of obligation to disclose it in its entirety and certainly not out of the goodness of their "hearts".
The comment was more general exasperation than an individual comment. There is no way to address the "masses"--the latter half of my comment is directed at a generalized 'you'(pl.).
Umm, KHTML was licensed as LGPL, which means Apple had to open source their fork if they distributed it.
No, you're thinking of GPL. The LGPL would have allowed them to use KHTML libraries without giving anything back--WebCore's "improvements" are largely Apple's own doing, apart from those changes which were shared upstream before KDE developers abandoned KHTML. Where they ran into trouble with sharing changes was with KJS.
KDE open-sourced KHTML. Apple didn't have a choice in the matter.
Nonsense. KHTML is LGPL. Apple could have used the libraries without contributing anything back.
Moreover, the DOM is Apple's, not KHTML's. WebCore, the basic component of WebKit, has very little relationship to KHTML.
It was so divergent that the KDE folks pretty much had to accept WebKit as the new KHTML if they wanted to accept the improvements.
That's not at all true. Most of the improvements shared back upstream, including KHTML's ability to pass Acid2, were adapted prior to the merger. KDE adopted WebKit by choice. There was nothing stopping them from continuing development of KHTML separately, nor was their any requirement that the KDE people actually adopt any of Apple's improvements.
Sour grapes that KHTML was largely abandoned in favor of something better doesn't explain why it's WebKit, and not KHTML, that is being adopted by other platforms.
They just take the open-source WebKit engine and slap their own UI over it
WebKit was developed by Apple, originally as a fork of KHTML for their Safari browser. Apple open-sourced WebKit and it was so good that many of its improvements were copied back into KHTML. It's also being used by a number of mobile phones because of its strengths relative to e.g, Gecko, including Android.
Without Apple, there would be no WebKit. But don't let reality get in your way.
You are so sure that no mere genius could ever read a sentence and have something interesting to say about it.
Hardly. There are plenty of interesting things to be said.
You are childish, and immature, and lacking in the social graces whereby good conversation can be both instructive and entertaining. Continue to make blanket statements regarding your supposed superior position
I think you're confusing your posts with mine. You are the one claiming superiority and distracting from the points with imagined slights.
denigrate me
There you go again. You're the only one making this personal. You continually claim the high ground and accuse others of arguing on a lesser level. Instead of being professional, you go straight for challenges arising from ignorance, not any attempt for illumination or clarification. You pout and stamp your feet and claim that you're "done"--but keep posting, complaining about how you've been "treated". You are not your argument, and if you can't participate in a discussion without whining about bogus arguments being flatly rejected, you're not ready for a debate.
In the course of this lengthy discussion, I have cited three court cases, two statutes, and provided clarification on five terms of art with which you are unfamiliar.
You allege occurrences, but are too lazy to list them.
It mentions that a new generation of iPhone is out, in context with a new version of Opera, and that entirely new browsers are coming. These are relevant facts, and there's nothing confused about them
Sure there is. The comparison is between a browser and a device. It's a failure of parallelism at best. If the author meant to refer to the iPhone Safari browser, that's a product that has been out for over a year, but to say so would make Opera look pretty late to the party to someone who didn't know that Opera already made mobile browsers. If the author meant to imply that Apple just managed to get out a browser, making them late to the party, they're forgetting the past thirteen months. In any case, it's an all-around poor choice of words.
The release of the iPhone 3G is no more relevant than the release of the latest HTC Windows Mobile device using Mobile IE, which is at least a few months old itself. Why does it even need to be mentioned? Is it really just a bald-faced attempt to drive up comments and traffic?
It is interesting to note that while I was blockquoting quotes from the US Supreme Court, you prefer Wikipedia?
Again illustrative of your utter failure to comprehend. You are quoting a law firm's web page and using the quotes without context or understanding of their contents, because you have not actually read the SCOTUS opinion on the case, let alone understood it. Further, my statement was that your law firm summary was less accurate than the Wikipedia entry was not an expressed preference, but quite clearly a condemnation of your source and Wikipedia at the same time. I prefer actual authority wielded by one sufficiently knowledgeable to present it. I am happy to discuss issues and points of confusion with lay people in the context of a discussion, but being awkwardly challenged and imprecisely countered--and then to have to sit through complaints about how the poor arguments were flatly rejected--is not indicative to me of someone interested in a discussion.
It's indicative of a clueless person who thinks he knows better and has expressed an annoying refusal to listen.
It is not personal, and the standards would easily be lifted would you not complain about perceived "tone" while professing your own false superiority. The implication that you are engaged in a higher level of discourse based on fabricated beliefs of personal slights is ridiculous. Debate is adversarial and there is value in being direct, even blunt, and especially so when someone with that dangerous "little bit of knowledge" refuses to pay attention.
Each and every issue has been addressed no less than twice by the authority of court opinions on the matter. They are wrong for the reasons illustrated quite plainly by the text. It's not rude. What is rude and presumptive is to continually repeat the same disproved arguments based on plain meaning of terms where they do not apply.
Perhaps instead of challenging, you could seek clarification on issues you plainly do not understand. Trying to pretend you know what you're talking about and attempting false corrections is no invitation for being let down gingerly. Take your moral indignation elsewhere.
That's the summation from the previous paragraph. The look and feel is not relevant to a copyright inquiry, but only trademark. I'm sorry if the completeness of the quote was confusing to you.
I wish I could say the same of your points, but they're unfortunately somewhere between misguided and flat-out wrong, which is humorous given your frequent admonishing with an informal reference that's less accurate on the matter than Wikipedia (an interesting phenomenon, to be sure). If this is your face-saving means of bowing out, so be it.
No. Just no. Until you can properly articulate the standards, with valid citations not to an incomplete and inadequate summary, there is no point in continuing this.
You can't then say, "Well confusion exists, but that doesn't matter to determining if confusion exists."
How you got to this absurd statement is a mystery.
Actual consumer confusion is not requisite to the existence of confusion in the trademark context. If actual consumer confusion exists, it is supporting evidence. It is not, however, adequate. It is neither necessary nor sufficient.
Design is not and can not be inherently distinctive.
No. That statement does not even make logical sense. Design must as a prerequisite, be distinctive before it can acquire secondary meaning. The design of a single product alone cannot be sufficiently distinctive to innately earn trademark protection.
I present facts. The bottom line is that the design, when created, can not be distinctive for purposes of the Lanham Act because design has no inherent distinction. Period.
No, you don't. You present a layman's regrettable misunderstanding of facts. A product's design, standing alone, has no inherent trade distinction, because it has no association. This statement is also true of a logo--you can create a logo without trade distinction because nobody knows what it is. That does not mean that the logo is not independently distinctive. The design itself must be distinctive, or it cannot ever hope to acquire secondary meaning. You are relying on the shorthand summary of a law firm. I have provided the exact text of the Act and the court opinion.
"The attribution of inherent distinctiveness to certain categories of word marks and product packaging derives from the fact that the very purpose of attaching a particular word to a product, or encasing it in a distinctive package, is most often to identify the product's source." 206
You are mistaking "product design" for "design" generally in your analysis, based on the incomplete information provided to you. To wit, " Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615, does not foreclose the Court's conclusion, since the trade dress there at issue was restaurant decor, which does not constitute product design, but rather product packaging or else some tertium quid that is akin to product packaging and has no bearing on the present case. While distinguishing Two Pesos might force courts to draw difficult lines between product-design and product-packaging trade dress, the frequency and difficulty of having to distinguish between the two will be much less than the frequency and difficulty of having to decide when a product design is inherently distinctive." Id.
I can't get into a fight in things that over my head, because I don't stoop to that level. Please, elevate yourself to my level of discourse, and don't be afraid to learn something new.
Oh, but you do. Implying that I'm somehow beneath your level of discourse, when you are plainly relying on a non-expert and unprofessional source of information, is ludicrous. It is you who should be paying closer attention and learning.
Your personal insults are beneath the quality of my discourse. I
Personal insults? Anything you might perceive out of your ignorance as a "personal insult" could not possibly exceed the "personal insult" of trying to claim some sort of superiority in this discourse, particularly given your limited knowledge of the field.
"Facebook" is not a synonym for "student directory", it is a specific instance of a student directory.
No it's not.
And even if "facebook" were a synonym for "student directory" that still would not give Facebook an automatic claim to any term that describes student directories.
For the love of $Deity, no one, Facebook.com included, is claiming that.
It's not rocket science, people. It is not any one element. It is not the font alone. It is not the name alone. It is not the layout alone. It is not the exactly identical (and English) naming of files and functional PHP code in a German website alone. It is not the fact that the web folder is "Fakebook" alone. It is not the similar intent and purpose of the site alone. It is the sum of the reproductions, showing a pervasive and complete attempt to replicate the distinctiveness of a third party.
I don't know why this must be repeated so many friggin' times.
Check out the links to the Internet Archive home pages made by other posters, while you're at it. Facebook's home page recently changed, and their additional CSS is because their style sheets link to broad sets of standard styles. You don't mean to imply with a straight face that breaking up the CSS differently is evidence that it was written originally, or that even if it was, that it's not intended to duplicate arbitrary choices made by Facebook designers, do you?
Explain to me why all the unique content coding at studiVZ is in German, while all their PHP is in English, and named exactly the same as the includes, libraries, and function pages as Facebook.
Its only where they [...] start saying, "I *am* civilizedINTENSITY!", that laws are broke. They ain't me.
Okay, first of all, why can't you use apostrophes appropriately? I wrote it off as a typo the first ten times, but now it's just growing absurd.
Back to the point, the use of a design is an assertion of identity, particularly in foreign markets where context is changed. The Coca-cola logo is not immediately recognizable in, say, Arabic. But that bottle definitely is. Another company using that bottle is directly benefiting from appearing to be a Coca-Cola product on first impression. If I change the word Slashdot in the top left and call it PlasmaStream, and change the content to physics-related entries, I am directly appealing to people who might reasonably conclude that PlasmaStream is a new spinoff of Slashdot, because the audience has significant crossover and the layout is instantly recognizable.
since it can't be under trade dress since its too new to have acquired secondary meaning
Argumentative fallacy. Newness is not a factor.
immediately copy those presentation techniques.
CSS data structuring is not layout. It is not look and feel. What you're referring to is a patent, and that is outside the context of this conversation.
This sort of copying is not merely condoned, it is *required* of ethical citizens.
That's asinine. Copying a technique has absolutely nothing to do with the Facebook thing. There's nothing groundbreaking about the technological innovation of the Facebook design that would be worth reproducing for any legitimate purpose.
You can't have a website that doesn't have layout, of one sort or another.
And you can't have a conventional, internal combustion car without a grille of some sort. The design of that grille might be distinctive, just as the design of a layout might be distinctive.
The existence of a structure is functional. Its colors, arrangement, proportions, and coding are not, and are all capable of being distinctive.
You are attempting to split hairs where there are none to split.
I'd suggest that at the point where it no longer adds value
Your suggestion is unnecessary and irrelevant. It is not a novel question. A visual layout is a design. It is aesthetic, even though good design facilitates ease of use. The OS X UI comes to mind here (also established, protected trade dress).
There are contractual agreements on most/all of the above but they are all provided PRIOR to sale.
No, they're not. You're not presented with the terms until you're right there about to use it. The terms being available on the website prior is precisely identical to software publishing.
What's printed on the back of your airline ticket is not explicitly presented prior to the booking process.
In addition, every one of them makes you SIGN
Irrelevant. Assent is assent.
Based on that I can sell something for whatever price and then change the terms of service to anything I want - up to and including prohibiting use - and just keep the money i made.
No, you'd have to post terms available for review prior to sale that said the terms may change in the future, and you'd also have to indicate to the purchaser either by express notice or by trade usage that you were imposing terms on the sale. Then you'd have to be selling something requiring a license to use in the first place, as opposed to, say, produce or plastic discs. If you did all that, knock yourself out.
According to your entire argument, I can not use that software any more.
Correct, unless the license termination provisions allow you to operate under the prior license. All the licenses I write in such a context include this option, but your example is odd in the following ways: it is software being sold as a service, there does not appear to be an ongoing fee for the service, and you allege that there is no independent offline functionality.
You either treat a EULA like a real contract or it's nothing more than a suggested agreement with little to no legal standing.
There is exactly zero evidence to suggest the latter. It's sad how confused and lost you are.
You need to prove secondary meaning has developed, and you've never mentioned that once.
I have, several times. The layout of a website is ipso facto the indicator of origin for online services. The Slashdot design is what indicates to you that you are using Slashdot. In conjunction with referring to the URL, it is your only way of recognizing this site as opposed to Engadget or Wikipedia.
From Peri Hall & Associates, Inc. v. Elliot Institute for Social Sciences (not published, but the most succinct summary of the test wrt websites): "Plaintiffs have put forth substantial evidence that Plaintiffs own copyrights to the code and graphic design of the website. Further, even a cursory examination of the two websites at issue shows that the Defendants simply copied the look and feel of MCLE's website, even to the extent of using the exact same pictures in the exact same layout on each page. Additionally, Plaintiffs introduced evidence that Defendants are using MCLC's trademarks as metatags in its website. Therefore, this Court finds that Plaintiffs have demonstrated a substantial likelihood of success on the merits from which irreparable harm can be presumed."
In terms of confusion, a term of art carries less weight than legal terminology.
A term of art is legal terminology. You are working from the plain meaning, which carries no weight.
Of those eight points, the courts (in the US) have held that for copying to matter, there has to be evidence that confusion exists.
Again, confusion is not defined by whether a consume would actually be confused, but by the DuPont factors, of which actual consumer confusion is just one. A factor is not an element, and need not be fully satisfied to pass gravamen.
Slashdot Mirror
What you're not recognizing is that option 3 refers to the libraries taken from KHTML.
KHTML is a product containing a number of libraries, many of which Apple used in their product. Some of those libraries were modified, in particular as you point out to remove the reliance on Qt. Those modified libraries had to be shared.
Those modified libraries, plus some unmodified libraries, plus some wholly independent libraries, combine together to form a product called WebCore. WebCore's KHTML-based, modified libraries must be shared back per the terms of the LGPL. WebCore's independent libraries need not be, thus, WebCore as a whole need not be open source (but practically speaking, separating it would be more work than it would be worth).
WebCore, in turn, is a set of libraries in a product called WebKit. WebKit is a set of libraries in a product called Safari.
The LGPL does not reach beyond the LGPL'd libraries--i.e., the portion of WebCore that is KHTML-derived. This is the only code Apple is obligated to release under the LGPL (plus their likewise KJS-derived libraries).
LGPL isn't the same as a BSD permissive-style license,
No. But neither is it the same as the GPL generally.
The reason it was known as the Library GPL is that it allowed the non-contributory use of GPL'd libraries by other types of software licensed under terms incompatible with the GPL.
The KHTML library changes would have had to be shared per the terms of the licenses. This requirement, however, does not even encompass all of WebCore, let alone WebKit.
As far as I know, however, any changes or improvements made to the LGPL'ed programme itself must be distributed Freely, with source, if it is to be distributed at all.
Any changed or improvements to the LGPL'd software, which it is a complete program or a library. In the case of KHTML, it is a set of libraries. Those libraries were adopted into the codebase for WebCore--and only those libraries derived from the KHTML libraries would need to be shared.
It does not extend to other libraries written by Apple or any other developer, and it does not extend to products merely containing those libraries. Limiting that "wagon-hitching" (widely, and in some ways regrettably, known as "parasitic") effect of the GPL is the reason the LGPL exists in the first place.
Well, I can't claim to be an expert on the LGPL, but Wikipedia would seem to be in contradiction with you, and while I don't trust Wikipedia implicitly, I trust it more than random internet guy.
In this case, there is no need to make a distinction, because Wikipedia does not disagree with me. Please point out where you feel there is inconsistency.
the LGPL does not allow them to make changes to it and distribute them without giving the source back. Since Apple had to make significant changes to make it work modularly and the way they wanted, they had to give all those changes back.
You are still being imprecise. The LGPL does allow them to make whatever changes they like, so long as the KHTML libraries they are using are used intact. I do not disagree that any modified libraries had to be shared back upstream, but those changes are portions of WebCore, itself a portion of WebKit. There was no requirement that compartmentalized changes, improvements, and additions be shared if they extended beyond the four corners of the KHTML libraries.
WebCore is much more than rewritten KHTML libraries. WebKit is much more than WebCore.
That said, to claim Apple had a choice about how Webkit would be licensed or if their changes to it would be open source is simply not true.
It absolutely is true. There was no obligation to open-source WebKit. There wasn't even an obligation to open-source the entirety of WebCore and JSCore. There was an obligation to share changes to modified libraries.
What's simply not true is that Apple had no alternative. Apple provided WebKit tactically, not out of obligation to disclose it in its entirety and certainly not out of the goodness of their "hearts".
The comment was more general exasperation than an individual comment. There is no way to address the "masses"--the latter half of my comment is directed at a generalized 'you'(pl.).
Umm, KHTML was licensed as LGPL, which means Apple had to open source their fork if they distributed it.
No, you're thinking of GPL. The LGPL would have allowed them to use KHTML libraries without giving anything back--WebCore's "improvements" are largely Apple's own doing, apart from those changes which were shared upstream before KDE developers abandoned KHTML. Where they ran into trouble with sharing changes was with KJS.
KDE open-sourced KHTML. Apple didn't have a choice in the matter.
Nonsense. KHTML is LGPL. Apple could have used the libraries without contributing anything back.
Moreover, the DOM is Apple's, not KHTML's. WebCore, the basic component of WebKit, has very little relationship to KHTML.
It was so divergent that the KDE folks pretty much had to accept WebKit as the new KHTML if they wanted to accept the improvements.
That's not at all true. Most of the improvements shared back upstream, including KHTML's ability to pass Acid2, were adapted prior to the merger. KDE adopted WebKit by choice. There was nothing stopping them from continuing development of KHTML separately, nor was their any requirement that the KDE people actually adopt any of Apple's improvements.
Sour grapes that KHTML was largely abandoned in favor of something better doesn't explain why it's WebKit, and not KHTML, that is being adopted by other platforms.
They just take the open-source WebKit engine and slap their own UI over it
WebKit was developed by Apple, originally as a fork of KHTML for their Safari browser. Apple open-sourced WebKit and it was so good that many of its improvements were copied back into KHTML. It's also being used by a number of mobile phones because of its strengths relative to e.g, Gecko, including Android.
Without Apple, there would be no WebKit. But don't let reality get in your way.
You are so sure that no mere genius could ever read a sentence and have something interesting to say about it.
Hardly. There are plenty of interesting things to be said.
You are childish, and immature, and lacking in the social graces whereby good conversation can be both instructive and entertaining. Continue to make blanket statements regarding your supposed superior position
I think you're confusing your posts with mine. You are the one claiming superiority and distracting from the points with imagined slights.
denigrate me
There you go again. You're the only one making this personal. You continually claim the high ground and accuse others of arguing on a lesser level. Instead of being professional, you go straight for challenges arising from ignorance, not any attempt for illumination or clarification. You pout and stamp your feet and claim that you're "done"--but keep posting, complaining about how you've been "treated". You are not your argument, and if you can't participate in a discussion without whining about bogus arguments being flatly rejected, you're not ready for a debate.
Fuck you.
QED.
In the course of this lengthy discussion, I have cited three court cases, two statutes, and provided clarification on five terms of art with which you are unfamiliar.
You allege occurrences, but are too lazy to list them.
Where?
It mentions that a new generation of iPhone is out, in context with a new version of Opera, and that entirely new browsers are coming. These are relevant facts, and there's nothing confused about them
Sure there is. The comparison is between a browser and a device. It's a failure of parallelism at best. If the author meant to refer to the iPhone Safari browser, that's a product that has been out for over a year, but to say so would make Opera look pretty late to the party to someone who didn't know that Opera already made mobile browsers. If the author meant to imply that Apple just managed to get out a browser, making them late to the party, they're forgetting the past thirteen months. In any case, it's an all-around poor choice of words.
The release of the iPhone 3G is no more relevant than the release of the latest HTC Windows Mobile device using Mobile IE, which is at least a few months old itself. Why does it even need to be mentioned? Is it really just a bald-faced attempt to drive up comments and traffic?
It is interesting to note that while I was blockquoting quotes from the US Supreme Court, you prefer Wikipedia?
Again illustrative of your utter failure to comprehend. You are quoting a law firm's web page and using the quotes without context or understanding of their contents, because you have not actually read the SCOTUS opinion on the case, let alone understood it. Further, my statement was that your law firm summary was less accurate than the Wikipedia entry was not an expressed preference, but quite clearly a condemnation of your source and Wikipedia at the same time. I prefer actual authority wielded by one sufficiently knowledgeable to present it. I am happy to discuss issues and points of confusion with lay people in the context of a discussion, but being awkwardly challenged and imprecisely countered--and then to have to sit through complaints about how the poor arguments were flatly rejected--is not indicative to me of someone interested in a discussion.
It's indicative of a clueless person who thinks he knows better and has expressed an annoying refusal to listen.
It is not personal, and the standards would easily be lifted would you not complain about perceived "tone" while professing your own false superiority. The implication that you are engaged in a higher level of discourse based on fabricated beliefs of personal slights is ridiculous. Debate is adversarial and there is value in being direct, even blunt, and especially so when someone with that dangerous "little bit of knowledge" refuses to pay attention.
Each and every issue has been addressed no less than twice by the authority of court opinions on the matter. They are wrong for the reasons illustrated quite plainly by the text. It's not rude. What is rude and presumptive is to continually repeat the same disproved arguments based on plain meaning of terms where they do not apply.
Perhaps instead of challenging, you could seek clarification on issues you plainly do not understand. Trying to pretend you know what you're talking about and attempting false corrections is no invitation for being let down gingerly. Take your moral indignation elsewhere.
That's the summation from the previous paragraph. The look and feel is not relevant to a copyright inquiry, but only trademark. I'm sorry if the completeness of the quote was confusing to you.
I wish I could say the same of your points, but they're unfortunately somewhere between misguided and flat-out wrong, which is humorous given your frequent admonishing with an informal reference that's less accurate on the matter than Wikipedia (an interesting phenomenon, to be sure). If this is your face-saving means of bowing out, so be it.
Again, almost but not quite right.
No. Just no. Until you can properly articulate the standards, with valid citations not to an incomplete and inadequate summary, there is no point in continuing this.
You can't then say, "Well confusion exists, but that doesn't matter to determining if confusion exists."
How you got to this absurd statement is a mystery.
Actual consumer confusion is not requisite to the existence of confusion in the trademark context. If actual consumer confusion exists, it is supporting evidence. It is not, however, adequate. It is neither necessary nor sufficient.
No, there is no intermixing going on at all. You're thoroughly lost here. There is no reference to copyright.
Design is not and can not be inherently distinctive.
No. That statement does not even make logical sense. Design must as a prerequisite, be distinctive before it can acquire secondary meaning. The design of a single product alone cannot be sufficiently distinctive to innately earn trademark protection.
I present facts. The bottom line is that the design, when created, can not be distinctive for purposes of the Lanham Act because design has no inherent distinction. Period.
No, you don't. You present a layman's regrettable misunderstanding of facts. A product's design, standing alone, has no inherent trade distinction, because it has no association. This statement is also true of a logo--you can create a logo without trade distinction because nobody knows what it is. That does not mean that the logo is not independently distinctive. The design itself must be distinctive, or it cannot ever hope to acquire secondary meaning. You are relying on the shorthand summary of a law firm. I have provided the exact text of the Act and the court opinion.
"The attribution of inherent distinctiveness to certain categories of word marks and product packaging derives from the fact that the very purpose of attaching a particular word to a product, or encasing it in a distinctive package, is most often to identify the product's source." 206
You are mistaking "product design" for "design" generally in your analysis, based on the incomplete information provided to you. To wit, " Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615, does not foreclose the Court's conclusion, since the trade dress there at issue was restaurant decor, which does not constitute product design, but rather product packaging or else some tertium quid that is akin to product packaging and has no bearing on the present case. While distinguishing Two Pesos might force courts to draw difficult lines between product-design and product-packaging trade dress, the frequency and difficulty of having to distinguish between the two will be much less than the frequency and difficulty of having to decide when a product design is inherently distinctive." Id.
I can't get into a fight in things that over my head, because I don't stoop to that level. Please, elevate yourself to my level of discourse, and don't be afraid to learn something new.
Oh, but you do. Implying that I'm somehow beneath your level of discourse, when you are plainly relying on a non-expert and unprofessional source of information, is ludicrous. It is you who should be paying closer attention and learning.
Your personal insults are beneath the quality of my discourse. I
Personal insults? Anything you might perceive out of your ignorance as a "personal insult" could not possibly exceed the "personal insult" of trying to claim some sort of superiority in this discourse, particularly given your limited knowledge of the field.
"Facebook" is not a synonym for "student directory", it is a specific instance of a student directory.
No it's not.
And even if "facebook" were a synonym for "student directory" that still would not give Facebook an automatic claim to any term that describes student directories.
For the love of $Deity, no one, Facebook.com included, is claiming that.
It's not rocket science, people. It is not any one element. It is not the font alone. It is not the name alone. It is not the layout alone. It is not the exactly identical (and English) naming of files and functional PHP code in a German website alone. It is not the fact that the web folder is "Fakebook" alone. It is not the similar intent and purpose of the site alone. It is the sum of the reproductions, showing a pervasive and complete attempt to replicate the distinctiveness of a third party.
I don't know why this must be repeated so many friggin' times.
http://flickr.com/photos/bumi/285541845/sizes/o/
http://www.techcrunch.com/2008/07/18/facebook-sues-german-social-network-studivz/
http://mashable.com/images/facebookbigshot1.png
Check out the links to the Internet Archive home pages made by other posters, while you're at it. Facebook's home page recently changed, and their additional CSS is because their style sheets link to broad sets of standard styles. You don't mean to imply with a straight face that breaking up the CSS differently is evidence that it was written originally, or that even if it was, that it's not intended to duplicate arbitrary choices made by Facebook designers, do you?
Explain to me why all the unique content coding at studiVZ is in German, while all their PHP is in English, and named exactly the same as the includes, libraries, and function pages as Facebook.
Its only where they [...] start saying, "I *am* civilizedINTENSITY!", that laws are broke. They ain't me.
Okay, first of all, why can't you use apostrophes appropriately? I wrote it off as a typo the first ten times, but now it's just growing absurd.
Back to the point, the use of a design is an assertion of identity, particularly in foreign markets where context is changed. The Coca-cola logo is not immediately recognizable in, say, Arabic. But that bottle definitely is. Another company using that bottle is directly benefiting from appearing to be a Coca-Cola product on first impression. If I change the word Slashdot in the top left and call it PlasmaStream, and change the content to physics-related entries, I am directly appealing to people who might reasonably conclude that PlasmaStream is a new spinoff of Slashdot, because the audience has significant crossover and the layout is instantly recognizable.
since it can't be under trade dress since its too new to have acquired secondary meaning
Argumentative fallacy. Newness is not a factor.
immediately copy those presentation techniques.
CSS data structuring is not layout. It is not look and feel. What you're referring to is a patent, and that is outside the context of this conversation.
This sort of copying is not merely condoned, it is *required* of ethical citizens.
That's asinine. Copying a technique has absolutely nothing to do with the Facebook thing. There's nothing groundbreaking about the technological innovation of the Facebook design that would be worth reproducing for any legitimate purpose.
You can't have a website that doesn't have layout, of one sort or another.
And you can't have a conventional, internal combustion car without a grille of some sort. The design of that grille might be distinctive, just as the design of a layout might be distinctive.
The existence of a structure is functional. Its colors, arrangement, proportions, and coding are not, and are all capable of being distinctive.
You are attempting to split hairs where there are none to split.
I'd suggest that at the point where it no longer adds value
Your suggestion is unnecessary and irrelevant. It is not a novel question. A visual layout is a design. It is aesthetic, even though good design facilitates ease of use. The OS X UI comes to mind here (also established, protected trade dress).
There are contractual agreements on most/all of the above but they are all provided PRIOR to sale.
No, they're not. You're not presented with the terms until you're right there about to use it. The terms being available on the website prior is precisely identical to software publishing.
What's printed on the back of your airline ticket is not explicitly presented prior to the booking process.
In addition, every one of them makes you SIGN
Irrelevant. Assent is assent.
Based on that I can sell something for whatever price and then change the terms of service to anything I want - up to and including prohibiting use - and just keep the money i made.
No, you'd have to post terms available for review prior to sale that said the terms may change in the future, and you'd also have to indicate to the purchaser either by express notice or by trade usage that you were imposing terms on the sale. Then you'd have to be selling something requiring a license to use in the first place, as opposed to, say, produce or plastic discs. If you did all that, knock yourself out.
According to your entire argument, I can not use that software any more.
Correct, unless the license termination provisions allow you to operate under the prior license. All the licenses I write in such a context include this option, but your example is odd in the following ways: it is software being sold as a service, there does not appear to be an ongoing fee for the service, and you allege that there is no independent offline functionality.
You either treat a EULA like a real contract or it's nothing more than a suggested agreement with little to no legal standing.
There is exactly zero evidence to suggest the latter. It's sad how confused and lost you are.
Hard to believe, I know! It reads with almost the same level of editing skill (and the same rate of display rendering bugs) as the real thing!
You need to prove secondary meaning has developed, and you've never mentioned that once.
I have, several times. The layout of a website is ipso facto the indicator of origin for online services. The Slashdot design is what indicates to you that you are using Slashdot. In conjunction with referring to the URL, it is your only way of recognizing this site as opposed to Engadget or Wikipedia.
From Peri Hall & Associates, Inc. v. Elliot Institute for Social Sciences (not published, but the most succinct summary of the test wrt websites):
"Plaintiffs have put forth substantial evidence that Plaintiffs own copyrights to the code and graphic design of the website. Further, even a cursory examination of the two websites at issue shows that the Defendants simply copied the look and feel of MCLE's website, even to the extent of using the exact same pictures in the exact same layout on each page. Additionally, Plaintiffs introduced evidence that Defendants are using MCLC's trademarks as metatags in its website. Therefore, this Court finds that Plaintiffs have demonstrated a substantial likelihood of success on the merits from which irreparable harm can be presumed."
In terms of confusion, a term of art carries less weight than legal terminology.
A term of art is legal terminology. You are working from the plain meaning, which carries no weight.
Of those eight points, the courts (in the US) have held that for copying to matter, there has to be evidence that confusion exists.
Again, confusion is not defined by whether a consume would actually be confused, but by the DuPont factors, of which actual consumer confusion is just one. A factor is not an element, and need not be fully satisfied to pass gravamen.